Update: David Buxton’s court case against DWP

David Buxton, Chief Executive of Action in Disability in London, is a deaf man who works 5 days a week, but the Government’s Access to Work (AtW) scheme only provides funding for British Sign Language (BSL) interpreters 3 days a week. In June 2018, Buxton took the Department for Work & Pensions (DWP) to court. The result has now been announced…

…and it’s not what we had been hoping for.

So why did David Buxton take the DWP to court in the first place?

While the Equality Act 2010 makes it illegal to discriminate against a disabled candidate/worker, the Government’s AtW scheme aims to encourage companies and organisations to employ and support people with disabilities. AtW provides funding to pay for some of the extra disability-related expenses at work, reducing the cost the organisation would otherwise need to cover. However, the AtW cap – a maximum of £42,100 a year when Buxton started the appeal – is not enough to fund David Buxton’s BSL interpreters on each work day. Campaigners argue that the cap negatively impacts career prospects of deaf BSL users and disabled people with high support needs: placing them at a disadvantage when trying to get into or stay in the workplace.

In February 2018, Buxton won the right to the court case, which took place in June 2018. His lawyers argued that under the Equality Act 2010, the cap breaches the public sector equality duty and subjects him to indirect discrimination. His judicial review case was funded by the Equality and Human Rights Commission.

Posting a press release on Facebook on Friday 17th August 2018, it was announced that David Buxton had unfortunately lost the case. The result of the judicial review was that the Public Sector Equality Duty (PSED) had not been breached, as the process was to support disabled people into work – even if not everyone receives the support they need.

A few weeks before the hearing, the Government increased the AtW cap by 35% to £57,200. Is this great news as it means more financial support is available to deaf and disabled people in employment? Yes. Would David Buxton have won the case without the increase? ‘Almost certainly,’ says David Buxton, as the judge believed the increase was justified.

Government lawyers admitted that Buxton was at a disadvantage but that the increased cap gave him less of a disadvantage than previously. Buxton’s lawyers argued that a maximum cap was not needed, citing the Sayce report (2011) revealing a 148% return to the Treasury on their £1 investment to AtW. Did the Government agree with this figure? No. Have the Government revealed what they believe the figure to be? Also no, despite promising to do so over the last few years.

Referring to the Equality Act, Buxton made the following statement:

“I would like to add that the Equality Act does not sufficiently protect Deaf people using BSL despite Ministers and MPs repeatedly saying that it does. This judicial review judgment shows how hard it is to protect our rights as Deaf people using BSL as our first or preferred language. The Government supports the economies of cost over our basic human rights, therefore we have to campaign for the Equality Act to be strengthened, especially as there is no legal status for BSL in this current Act!”

So what now?

Buxton advises us to keep pressuring the Government to reveal the figure they believe is returned to the Treasury following an investment to AtW, and commission more research to help fund the scheme. Buxton also recommends us to pressure Parliament to introduce a new BSL Act and review the Equality Act so it gives BSL legal status.

David Buxton’s solicitor Louise Whitfield said:

“We believe more judicial review cases in future will influence Parliament to review the Equality Act if all these cases are lost in favour of those who can be ‘allowed’ by law to discriminate against Deaf and disabled people. For example, Mr Buxton has instructed me to take up a new judicial review on the inclusion of Deaf people on jury service. This will further test the Government to show its commitment to the spirit of the Equality Act or to continue simply ignoring the fact that it is possible for Deaf people to serve as jurors in this modern, inclusive and accessible society without any direct or indirect discrimination.”

Even though David Buxton lost this case, the DWP have still lost two cases since December 2017. It’s upsettingly telling that not only are people needing to fight for their rights in the first place, but for the DWP to lose (or, with this case, to have probably lost if they had not raised the cap weeks before the case) indicates that jobseekers and the employed are being failed by the Government.  Research commissioned by Inclusion London was published in October 2017 and described AtW as: “a cornerstone of the movement for equality and civil rights for Deaf and disabled people in the UK.” However, the future at AtW was uncertain because of “bureaucratic incompetence” and cutting people’s employment support.

You can pressure the Government to reveal the investment figures and improve the rights of BSL users by lobbying or writing to your MP, starting or signing a petition, submitting a Freedom Of Information request… or even arranging a march?! If so, count me in…!